HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Civil First Appeal No.341/2016

Smt. Prem W/o Shri Sharwan, aged about 36 years, R/o Near

Poultry Farm, Khatipura, Jaipur

----Appellant/plaintiff

Versus

1.

State Of Rajasthan Through Secretary, Medical And

Health Department, Govt. Secretariat, Jaipur

2.

Dr. Prabha Luhadiya Through Janana Hospital, Chandpole

Bazar, Jaipur

3.

Dr. Nupur, Assistant Professor, Through Janana Hospital,

Chandpole Bazar, Jaipur

4.

Dr. Shasha, D.g.o. Resident, Through Janana Hospital,

Chandpole Bazar, Jaipur

----Respondents/defendants

For Petitioner(s)

:

Mr. R K Daga

Mr. Prashant Daga

For Respondent(s)

:

HON'BLE MR. JUSTICE SUDESH BANSAL

Order

05/08/2022

1.

Matter has come up on pauper application No.4/2016 filed by

applicant-appellant as an indigent person assailing the judgment

dated 31.05.2016 passed by Additional District Judge No.7, Jaipur

Metropolitan whereby and whereunder her civil suit for claiming

damages of Rs.8,80,000/- was dismissed.

2.

Heard counsel for applicant-appellant and perused the

record.

3.

Learned counsel for applicant-appellant submits that

applicant was permitted to institute the civil suit for damages as

(2 of 4)

[CFA-341/2016]

forma pauperis (indigent person) before the trial court however,

the trial court has dismissed the suit vide judgment dated

31.05.2016, therefore, applicant may be permitted to pursue the

first appeal as an indigent person in view of provision of Order 44

Rule 1 CPC.

4.

On merits of case, counsel for applicant submits that this is a

case where applicant approached to the Government Hospital,

(Janana Hospital Chandpole Bazar, Jaipur) for the purpose of

termination of her pregnancy and she was admitted in

government hospital on 23.05.2001. The applicant was operated

on 24.05.2001 by government doctors on duty and thereafter she

was advised to come back to the hospital for re-examination after

45 days before the Family Welfare Centre.

5.

As per plaint, instead of approaching to the Family Welfare

Centre, she visited to doctors at her own expenses. On

recommendation of sonography, in the report of sonography dated

27.07.2001, applicant was found having pregnancy of 15 weeks.

Applicant submitted that thereafter, respondents did not perform

the operation to clear the pregnancy and applicant had to give

birth to a female child on 11.01.2002.

6.

In such circumstances, applicant instituted the civil suit

claiming damages from respondents and concerned government

doctors for negligence on their part.

7.

On facts mentioned hereinabove, this is a case where

applicant herself approached to government hospital seeking

termination of her pregnancy, which is permissible as per

provisions and procedure prescribed under the Medical Treatment

of Pregnancy Act, 1971 (hereinafter referred to as “the Act of

(3 of 4)

[CFA-341/2016]

1971”) [now the Medical Termination of Pregnancy (Amendment)

Act, 2021].

8.

Section 8 of the Act of 1971 reads as under:-

“8. Protection of action taken in good faith.—

No suit or other legal proceedings shall lie against any

registered medical practitioner for any damage caused or

likely to be caused by anything which is in good faith

done or intended to be done under this Act.”

9.

Learned trial court while dismissing applicant’s suit vide

impugned judgment dated 31.01.2016 has resorted to aforesaid

provisions of Section 8 of the Act of 1971 and in issue No.6 has

clearly held that suit for damages against government doctors is

not maintainable. That apart, the trial court has also examined the

issue of negligence on the part of government doctors and

observed that it is not disputed that operation for termination of

pregnancy was conducted on 24.05.2001 but applicant was

advised to come back after 45 days to the Family Welfare Centre

for re-examination and she never turned up.

10.

The trial cour